Citation Nr: 0624974
Decision Date: 08/14/06 Archive Date: 08/24/06
DOCKET NO. 95-15 101 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Newark, New
Jersey
THE ISSUES
1. Entitlement to service connection for post traumatic
stress disorder (PTSD).
2. Entitlement to service connection for scars of the head,
arm, left hand and stomach.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. Johnson, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1950 to March
1952 and from March 1975 to December 1976. He also had
periods of active duty training (ACDUTRA) and inactive duty
for training (INACDUTRA).
This case comes before the Board of Veterans' Appeals (Board)
on appeal from a decision rendered by the Newark, New Jersey
Regional Office (RO) of the Department of Veterans Affairs
(VA).
This case was previously remanded in a June 2005 Board
decision. The transcripts of March 1996 and October 1998
hearings held at the local RO are of record.
FINDINGS OF FACT
1. The veteran did not engage in combat with the enemy
during military service and there is no objective evidence of
an in-service stressor.
2. Service medical records do not show evidence of injuries
in service, from which the scars are alleged to have
resulted.
CONCLUSIONS OF LAW
1. PTSD was not incurred in or aggravated by active military
service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002);
38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (f) (2005).
2. Scars of the head, arm, left hand and stomach were not
incurred in or aggravated by active military service. 38
U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38
C.F.R. § 3.303(2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act of 2000 (VCAA) is
applicable to this appeal. To implement the provisions of
the law, the VA promulgated regulations codified at 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a)). The Act and
implementing regulations provides that VA will assist a
claimant in obtaining evidence necessary to substantiate a
claim but is not required to provide assistance to a claimant
if there is no reasonable possibility that such assistance
would aid in substantiating the claim. It also includes new
notification provisions.
In this case, the veteran's claim for scars of the head, arm,
left hand and stomach was received in December 1992. A claim
for PTSD was received in December 1997. In correspondence
dated in September 2003 and July 2005, he was notified of the
provisions of the VCAA as they pertain to the issue of
service connection. Clearly, from submissions by and on
behalf of the veteran, he is fully conversant with the legal
requirements in this case. Thus, the content of this letter
complied with the requirements of 38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159(b).
The veteran has been made aware of the information and
evidence necessary to substantiate his claim and has been
provided opportunities to submit such evidence. The RO has
properly processed the appeal following the issuance of the
required notice. Moreover, all pertinent development has
been undertaken, and all available evidence has been obtained
in this case. The RO has obtained all available service
medical records, VA outpatient treatment records, identified
private treatment records and Social Security records and
associated them with the claims file. The appellant has not
identified any additional evidence that could be obtained to
substantiate the claim. In July 2005 correspondence, the
veteran was requested to identify any additional evidence
necessary to support his contentions; however no response was
received. Therefore, the Board is satisfied that VA has
assisted the veteran in the development of his claim in
accordance with applicable laws and regulations.
Accordingly, the Board will address the merits of this claim.
During the pendency of this appeal, on March 3, 2006, the
United States Court of Appeals for Veterans Claims
(hereinafter "the Court") issued a decision in the
consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006), which discussed the VCAA notice requirements
of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Because
this claim is being denied, any other notice requirements
beyond those cited for service connection claims, are not
applicable. As indicated above, there has been substantial
compliance with all pertinent VA law and regulations, and to
move forward with this claim would not cause any prejudice to
the veteran.
PTSD
The veteran alleges he developed PTSD as a result of two
stressful in-service events, 1) combat missions in China, and
2) a stressful work environment while serving as a member of
the Army General Staff at the Pentagon.
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002);
38 C.F.R. § 3.303 (2005). Service connection for PTSD
requires: (1) medical evidence diagnosing the condition, (2)
credible supporting evidence that the claimed, in-service
stressor actually occurred, and (3) a link, established by
medical evidence, between current symptomatology and the
claimed in-service stressor.
In adjudicating a claim of entitlement to service connection
for PTSD, the Board is required to evaluate the supporting
evidence in light of the places, types, and circumstances of
service, as evidenced by the veteran's military records, and
all pertinent medical and lay evidence. 38 U.S.C.A. §
1154(b); 38 C.F.R. § 3.304(f) (2004); see also Hayes v.
Brown, 5 Vet. App. 60, 66 (1993).
Service medical records are negative for a diagnosis of PTSD
or treatment for a psychiatric disorder.
In hearing testimony and statements submitted in support of
his claim, the veteran indicated he had service in China and
Russia as part of a covert operation designed to cause
conflict between Chinese and Russian troops. He described
hand to hand combat with a Chinese militiaman who wounded him
in the head and hand with a machete. He also stated that he
received a wound in his abdomen during a knife fight on one
of these instances.
The veteran has also indicated in both testimony and written
statements, that the work pressure he experienced while with
the Army General Staff at the Pentagon during 1975 and 1976
caused PTSD. During the October 1998 hearing, he expressed
belief that his coworkers were putting mines and booby traps
in his desk in competition for limited General Officer
promotions. His wife submitted a statement in support of
this claim in which she recalled her husband worked 7 days a
week and between 12 to 15 hours a day which contributed to
the work pressure.
The veteran was diagnosed with major depressive disorder with
psychosis, secondary to PTSD during an October 1997 VA
examination. The Axis IV diagnosis indicated that his PTSD
was linked to combat stress experienced in China during 1949.
The diagnosis was based on the veteran's description of
stressful combat missions in both Russia and China including
several ambushes under which he came under direct fire. The
veteran reported he had been incarcerated by the Chinese
militia for some time, but later released by the regular
Chinese army. He had also stated that following his release
by the Chinese Army, he suffered a mental collapse and was
taken off active duty as a result and received treatment at a
VA Hospital in Newington, Connecticut for one year.
The veteran also submitted an April 2000 evaluation record of
G.H., MSW, LCSW, in support of his service connection for
PTSD, which indicated that the veteran's PTSD symptoms
stemmed from the combat-related intelligence missions to
China.
It is worth noting that no diagnosis of PTSD has been
provided on the basis of work related stress or pressure from
the veteran's service as a member of the Army General Staff
between 1975 and 1976. The diagnosis of PTSD was provided
based solely on symptomatology and the alleged Russian and
Chinese combat missions.
However, the Board notes that the PTSD diagnosis was based
solely on the veteran's self-reported and completely
unsubstantiated history of events during his military
service. The Board is not required to accept the
unsubstantiated opinions of a psychiatrist that alleged PTSD
had its origins in service. Wood v. Derwinski, 1 Vet. App.
190, 192 (1991), reconsidered, 1 Vet. App. 406 (1991); Elkins
v. Brown, 5 Vet. App. 474, 478 (1993) (a medical opinion that
is based on the veteran's recitation of service history, and
not his documented history, is not probative). In fact, the
Board observes evaluation notes which reflect that the
veteran was unable to give a detailed or sequential history
of his career in the Army for the years of 1950 -1976, and
was a very poor historian. They also note evidence of
significant grandiosity to the veteran's thought production,
dementia, and impaired short and long term memory.
Moreover, there is no evidence to support the veteran's
claimed treatment for PTSD at a Newington, Connecticut VA
medical facility. Several post-service private treatment
records do show however that the veteran has been diagnosed
with and, in some cases treated for, various psychiatric
disorders including having an "over-achieving type-A
personality;" bi-polar disorder; adjustment reaction with
organic depression; and organic mood disorder; and depression
and residual organic brain syndrome secondary to an alleged
cerebral-vascular accident (stroke) in 1976.
After a diagnosis of PTSD has been made, the analysis then
turns to whether there is credible supporting evidence that
the claimed, in-service stressor actually occurred. The
evidence necessary to establish the occurrence of a
recognizable stressor during service to support a diagnosis
of PTSD varies depending upon whether or not the veteran
engaged in "combat with the enemy." See 38 U.S.C.A. §
1154(b) (West 2002); 38 C.F.R. § 3.304(f); Zarycki v. Brown,
6 Vet. App. 91, 98 (1993).
If VA determines either that the veteran did not engage in
combat with the enemy or that he did engage in combat, but
that the alleged stressor is not combat related; then his lay
testimony, in and of itself, is not sufficient to establish
the occurrence of the alleged stressor. The record must
contain evidence that corroborate his testimony or
statements. See VAOPGCPREC 12-99 (October 18, 1999);
Zarycki, at 98.
In the instant appeal, the Board finds there is absolutely no
credible evidence showing that the veteran "engaged in
combat with the enemy," despite his account of having combat
with Chinese and Russian militiamen during covert operations.
Service personnel records, including multiple DD 214s, show
no foreign service, participation in covert operations or
military campaigns. There is no record of awards or
decorations for valor such as the Purple Heart or Combat
Infantryman's Badge, or record of combat experience or
injuries to otherwise show that he had actual combat with the
enemy.
Also absent from the record is lay evidence, such as
statements from former platoon members or friends, to support
the veteran's claim of combat service. Also, service medical
records reflect no treatment for injuries consistent with the
described combat-related wounds. The veteran stated he was
treated at the aid station in China, but this is not
supported upon review of the medical records. Surely, if the
veteran had been wounded in combat, he would have indicated
it during the intermittent medical examinations and reported
it on his medical status forms. Thus, the Board is satisfied
that the veteran did not "engage in combat with the enemy."
As such his lay statements and testimony alone are not
sufficient to establish the occurrence of the claimed events.
Doran, 6 Vet. App. at 288-89.
The Board notes that the veteran did not submit the PTSD
questionnaire, which is vital in developing such cases. The
Board observes that VA requested this questionnaire from the
veteran in July 2005. The veteran's failure or refusal to
respond to the stressor letter sent to him has stymied VA's
ability to confirm the stressor. The duty to assist is not
always a one-way street. If a veteran wishes help, he cannot
passively wait for it in those circumstances where he may or
should have information that is essential in obtaining the
putative evidence. Wood v. Derwinski, 1 Vet.App. 190, 193
(1991). The Board finds that the VA fulfilled its obligation
to assist the veteran in developing his claim. No further
requests for evidence are warranted.
On the basis of the foregoing, the Board finds that the
criteria for establishing service connection for post-
traumatic stress disorder, due to alleged in-service
stressors of combat and non-combat related work pressure
while on active duty; has not been met. In reaching this
conclusion, the Board has considered the applicability of the
benefit-of-the-doubt doctrine. However, in the absence of a
confirmed PTSD medical diagnosis and verification of the
alleged stressors - the doctrine is not applicable in this
appeal. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1
Vet. App. at 55-57 (1990).
Scars head, arm, left hand, and stomach
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002);
38 C.F.R. § 3.303. As a general matter, service connection
for a disability on the basis of the merits of such claim is
focused upon (1) the existence of a current disability; (2)
the existence of the disease or injury in service, and; (3) a
relationship or nexus between the current disability and any
injury or disease during service. See Cuevas v. Principi, 3
Vet. App. 542 (1992); Rabideau, 2 Vet. App. 141.
Every veteran shall be taken to have been in sound condition
when examined, accepted and enrolled for service, except as
to defects, infirmities, or disorders noted at the time of
the examination, acceptance, and enrollment, or where clear
and unmistakable evidence demonstrates that the injury or
disease existed before acceptance and enrollment and was not
aggravated by such service. 38 U.S.C.A. § 1111; Cotant v.
Principi, 17 Vet. App. 116 (2003); VAOPGCPREC 3-2003 (July
16, 2003).
Where a determinative issue involves medical causation or a
medical diagnosis, competent medical evidence is required.
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Although the
appellant is competent to provide evidence of visible
symptoms, he is not competent to provide evidence that
requires medical knowledge. Espiritu v. Derwinski, 2 Vet.
App. 492 (1992).
The veteran contends that he received knife wounds in the
stomach during a knife fight in China. He also contends that
he has scars on the head and left hand from a separate
incident in which he was struck in the head with a machete
and injured his left hand trying to block the machete. Both
incidents are alleged to have occurred while he was involved
in combat with Chinese militia. He also contends that he
received a scar to the right arm from some sort of
projectile.
Available service medical records show no evidence of scars
or treatment for wounds of any kind, whether they are alleged
to have been incurred during a combat mission in China, or
otherwise, with the exception of a scar on the veteran's knee
from a parachute jump injury. The veteran alleged that he
was treated at an aid station for the machete and knife
wounds at the time, yet such treatment is not reflected by
service medical records. Once again,, the Board observes
that service records show no period of foreign service. The
veteran indicated the scar on his right arm was due to some
type of projectile, but the Board finds no evidence in the
service medical records or post-service records to support
such a claim.
The post service evidentiary record in this case is
extensive, consisting of four volumes of documents. The
evidence includes private and VA medical records, which,
together, cover a period from 1990 to 2004. Still, there is
no competent evidence that the veteran sustained injuries
with resulting scars to the head, arm, left hand and stomach
in service. In February 1993, the veteran identified a
private physician, A. D., M.D., as a source of relevant
private medical treatment, but has not provided any further
information about him nor has he provided any treatment
records in his possession.
Service connection requires a showing of a disease or injury
in service which is causally related to a current disability.
The veteran has not provided any evidence showing that he
incurred injuries which have resulted in scars on his head,
arm, left hand, and stomach.
On the basis of the foregoing, the Board finds that the
criteria for establishing service connection for scars on the
head, arm, left hand, and stomach, has not been met. In
reaching this conclusion, the Board has considered the
applicability of the benefit-of-the-doubt doctrine. However,
as the preponderance of the evidence is against the veteran's
claims, that doctrine is not applicable in this appeal. See
38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. at
55-57 (1990).
ORDER
Service connection for post-traumatic stress disorder is
denied.
Service connection for scars on the head, arm, left hand, and
stomach is denied.
____________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs